Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 2003

Opinion Question Conclusion(s) Issued
03-901 Is Willy K. Hagge unlawfully holding the office of director of the Hot Spring Valley Irrigation District because he simultaneously holds the office of member of the Modoc County Board of Supervisors? Whether Willy K. Hagge is unlawfully holding the office of director of the Hot Spring Valley Irrigation District because he simultaneously holds the office of member of the Modoc County Board of Supervisors presents substantial issues of fact and law requiring judicial resolution.

Official Citation: 86 Ops.Cal.Atty.Gen. 205 		12/19/2003
03-803 Is Ronald Ottinger unlawfully holding the office of member of the governing board of the San Diego Unified School District due to his failure to continue to reside within the boundaries of the district? Whether Ronald Ottinger is unlawfully holding the office of member of the governing board of the San Diego Unified School District due to his failure to continue to reside within the boundaries of the district does not present a substantial issue of fact or law requiring judicial resolution.

Official Citation: 86 Ops.Cal.Atty.Gen.194 		11/20/2003
03-610 Under the Stop Tobacco Access to Kids Enforcement Act, what constitutes an "appropriate database of government records" that may be used by a distributor, direct marketing firm, or other entity for the purpose of verifying the age of a purchaser of tobacco products? Under the Stop Tobacco Access to Kids Enforcement Act, an “appropriate database of government records” that may be used by a distributor, direct marketing firm, or other entity for the purpose of verifying the age of a purchaser of tobacco products is a compilation of information obtained from records maintained by a local, state, or federal government agency that provides evidence of whether a person’s age is 18 years or older.

Official Citation: 86 Ops.Cal.Atty.Gen.164 		09/16/2003
03-604 1. Where a member of a city council or county board of supervisors is appointed to sit as that body's representative on the governing board of the Coachella Valley Mountains Conservancy, may the appointee disclose to his or her appointing authority or its counsel information received in a closed session of the governing board?

2. Where the director of a state department is a member of the governing board of the Coachella Valley Mountains Conservancy by operation of law and designates an executive staff member to sit in his or her place, may the designee disclose to other department employees or department counsel information received in a closed session of the governing board? 		1. Where a member of a city council or county board of supervisors is appointed to sit as that body's representative on the governing board of the Coachella Valley Mountains Conservancy, the appointee may not disclose to his or her appointing authority or its counsel information received in a closed session of the governing board.

2. Where the director of a state department is a member of the governing board of the Coachella Valley Mountains Conservancy by operation of law and designates an executive staff member to sit in his or her place, the designee may not disclose to other department employees or department counsel information received in a closed session of the governing board.

Official Citation: 86 Ops.Cal.Atty.Gen. 210 		12/29/2003
03-412 May a city, by ordinance, shift the burden of an annual business license fee from individual swap meet vendors to the operator of the swap meet without the prior approval of city voters? A city may, by ordinance, shift the burden of an annual business license fee from individual swap meet vendors to the operator of the swap meet without the prior approval of city voters if the fee is imposed as a regulatory measure.

Official Citation: 86 Ops.Cal.Atty.Gen.176 		09/25/2003
03-411 Is concentrated cannabis or hashish included within the meaning of "marijuana" as that term is used in the Compassionate Use Act of 1996? Concentrated cannabis or hashish is included within the meaning of “marijuana” as that term is used in the Compassionate Use Act of 1996.

Official Citation: 86 Ops.Cal.Atty.Gen.180 		10/21/2003
03-409 Does the Los Angeles County Charter violate the Constitution by placing term limits on the office of sheriff? Whether the Los Angeles County Charter violates the Constitution by placing term limits on the office of sheriff presents a substantial question of law requiring judicial resolution; leave to file a quo warranto action is granted in the public interest.

Official Citation: 86 Ops.Cal.Atty.Gen. 127 		06/20/2003
03-408 1. May a member of the board of directors of a community services district remain on the board after filing a lawsuit against the district challenging the board's issuance of a development permit to the owner of property adjacent to the director's property?

2. Assuming that the director remains on the board, may the district and the director enter into an agreement settling the lawsuit? 		1. A member of the board of directors of a community services district may remain on the board after filing a lawsuit against the district challenging the board's issuance of a development permit to the owner of property adjacent to the director's property.

2. Assuming that the director remains on the board, the district and the director may not enter into an agreement settling the lawsuit.

Official Citation: 86 Ops.Cal.Atty.Gen. 142 		09/03/2003
03-406 1. Do the federal statutes governing the installation of pen registers and trap and trace devices provide authority for issuance of a state court order permitting a state law enforcement officer to install or use pen registers or trap and trace devices?

2. Do the state statutes governing the issuance of administrative subpoenas provide authority for a state law enforcement officer to install or use pend registers or trap and trace devices? 		1. The federal statutes governing the installation of pen registers and trap and trace devices do not provide authority for issuance of a state court order permitting a state law enforcement officer to install or use pen registers or trap and trace devices.

2. The state statutes governing the issuance of administrative subpoenas do not provide authority for a state law enforcement officer to install or use pen registers or trap and trace devices.

Official Citation: 86 Ops.Cal.Atty.Gen. 198 		12/18/2003
03-402 1. May the board of redevelopment agency enter into an agreement with a business firm that purchases goods and services from a board member who has been a supplier of goods and services to the firm for at least five years prior to the commencement of his current term of office, but not for five years prior to the commencement of his initial term of office, if the board member does not participate in or influence the making of the agreement?

2. May the board of a redevelopment agency enter into an agreement with a business firm that purchases goods and services from a board member who has been a supplier of goods and services to the firm if the board member first terminates his business relationship with the firm? 		1. The board of a redevelopment agency may enter into an agreement with a business firm that purchases goods and services from a board member who has been a supplier of goods and services to the firm for at least five years prior to the commencement of his current term of office, although not for five years prior to the commencement of his initial term of office, if the board member does not participate in or influence the making of the agreement.

2. The board of a redevelopment agency may enter into an agreement with a business firm that purchases goods and services from a board member who has been a supplier of goods and services to the firm if the board member first terminates his business relationship with the firm.

Official Citation: 86 Ops.Cal.Atty.Gen.187 		10/22/2003
03-316 Are emergency medical dispatch services subject to the review and approval of the local emergency medical services agency even when the services are developed, implemented, and operated in accordance with state guidelines? Emergency medical dispatch services are subject to the review and approval of the local emergency medical services agency even when the services are developed, implemented, and operated in accordance with state guidelines.

Official Citation: 86 Ops.Cal.Atty.Gen.153 		09/05/2003
03-315 1. Did Dr. Jay Betz comply with the residence qualification for election to the governing board of the Pleasant Ridge Union Elementary School District?

2. Is it in the public interest to grant the application for leave to sue in quo warranto to remove Dr. Jay Betz from office? 		1. Whether Dr. Jay Betz complied with the residence qualification for election to the governing board of the Pleasant Ridge Union Elementary School District presents a substantial question of law.

2. It is in the public interest to grant the application for leave to sue in quo warranto to remove Dr. Jay Betz from office.

Official Citation: 86 Ops.Cal.Atty.Gen. 82 		05/30/2003
03-305 Are the San Rafael Rock Quarry, Inc., the Dutra Group, Dutra Materials, and Dutra Dredging unlawfully holding or exercising their corporate franchises? The filing of a quo warranto action to determine whether the San Rafael Rock Quarry, Inc., the Dutra Group, Dutra Materials, and Dutra Dredging are unlawfully holding or exercising their corporate franchises would not be in the public interest due to pending litigation involving the same underlying allegations and thus the application for leave to sue is denied.

Official Citation: 86 Ops.Cal.Atty.Gen. 76 		05/29/2003
03-302 May a city council enter into a contract with a law firm, of which a city council member is a partner, to represent the city in a lawsuit if the law firm would receive no fees from the city for the services and would agree to turn over to the city any attorney fees that might be awarded in the litigation? A city council may not enter into a contract with a law firm, of which a city council member is a partner, to represent the city in a lawsuit even if the law firm would receive no fees from the city for the services and would agree to turn over to the city any attorney fees that might be awarded in the litigation.

Official Citation: 86 Ops.Cal.Atty.Gen. 138 		07/24/2003
03-301 Is a person employed as a trainee by a fire department to provide firefighting services entitled to the enhanced benefits granted by the Workers' Compensation Law for "firefighters"? A person employed as a trainee by a fire department to provide firefighting services is entitled to the enhanced benefits granted by the Workers' Compensation Law for "firefighters."

Official Citation: 86 Ops.Cal.Atty.Gen. 123 		06/20/2003
03-205 Does a sheriff have discretion to furnish copies of photographs of arrested persons, commonly known as "mug shots," in response to a request from a member of the general public, including the news media? A sheriff has discretion to furnish copies of photographs of arrested persons, commonly known as “mug shots,” in response to a request from a member of the general public, including the news media; however, once a copy is furnished to one member of the general public, a copy must be made available to all who make a request.

Official Citation: 86 Ops.Cal.Atty.Gen. 132 		07/14/2003
03-201 May a city council enter into a public works contract with a prime contractor who is the lowest bidder for the project if the city's mayor is an officer, shareholder, and employee of a listed subcontractor of the prime contractor and the mayor has not been a supplier of goods or services to the prime contract for at least five years prior to his election to office? A city council may not enter into a public works contract with a prime contractor who is the lowest bidder for the project if the city's mayor is an officer, shareholder, and employee of a listed subcontractor of the prime contractor and the mayor has not been a supplier of goods or services to the prime contractor for at least five years prior to his election to office.

Official Citation: 86 Ops.Cal.Atty.Gen. 118 		06/20/2003
03-106 In determining whether the remainder of an unexpired senatorial term to which a person has been elected is less than half of the full term (Cal. Const., art. XX, section 7), is the remaining portion of the term measured from the time the person is elected at a special election that is consolidated with a general election during a legislative recess or from the time the person takes the oath of office? In determining whether the remainder of an unexpired senatorial term to which a person has been elected is less than half of the full term (Cal. Const., art. XX, § 7), the remaining portion of the term is measured from the time the person takes the oath of office upon the convening of a new Legislature when the special election is consolidated with a general election that takes place during a legislative recess.

Official Citation: 86 Ops.Cal.Atty.Gen. 43 		04/09/2003
03-105 In providing or arranging for the provision of health care services under the California Medical Assistance program, is a county organized health system that has contracted with the California Medical Assistance Commission subject to the statutory requirement that a request for treatment "be reviewed for medical necessity only"? In providing or arranging for the provision of health care services under the California Medical Assistance program, a county organized health system that has contracted with the California Medical Assistance Commission is not subject to the statutory requirement that a request for treatment "be reviewed for medical necessity only" unless such requirement is a term of its contract.

Official Citation: 86 Ops.Cal.Atty.Gen. 108 		06/19/2003
03-101 Does a county treasurer's duty to nominate members of a county treasury oversight committee extend to persons already designated to be members of the committee by virtue of their office or through selection by another public official or government body? A county treasurer’s duty to nominate members of a county treasury oversight committee extends to persons already designated to be members of the committee by virtue of their office or through selection by another public official or government body, but the duty constitutes a ministerial act not involving the exercise of discretion with respect to these nominees.

Official Citation: 86 Ops.Cal.Atty.Gen.159 		09/10/2003
02-1207 May a superior court adopt local rules prohibiting law enforcement officers from (1) interrogating a minor in a juvenile detention facility, including before the filing of a juvenile petition, without the permission of the minor's attorney, (2) temporarily removing a minor from a juvenile detention facility for investigative purposes without the permission of the minor's parent, attorney, probation officer, and a juvenile court judge, and (3) placing a minor in a lineup without the permission of a juvenile court judge? A superior court may not adopt local rules prohibiting law enforcement officers from (1) interrogating a minor in a juvenile detention facility, including before the filing of a juvenile petition, without the permission of the minor's attorney, (2) temporarily removing a minor from a juvenile detention facility for investigative purposes without the permission of the minor's parent, attorney, probation officer, and a juvenile court judge, or (3) placing a minor in a lineup without the permission of a juvenile court judge.

Official Citation: 86 Ops.Cal.Atty.Gen. 146 		09/04/2003
02-1108 1. Does a grand jury, sitting in its civil "watchdog" capacity, have the authority to admonish a witness not to disclose what the witness learns in the grand jury room regarding the subject of the grand jury's inquiry?

2. May a violation of the admonition constitute contempt of court?

3. Would the following admonition be legally sufficient: "You are admonished not to reveal to any person except as directed by the court, which questions were asked or what responses were given or any other matters concerning the nature or subject of the grand jury's investigation which you learned during your appearance before the grand jury, unless and until such time as a transcript (if any), or a final report, of this grand jury proceeding is made public or until authorized by this grand jury or the court to disclose such matters. A violation of this admonition is punishable as contempt of court"? 		1. A grand jury, sitting in its civil “watchdog” capacity, has the authority to admonish a witness not to disclose what the witness learns in the grand jury room regarding the subject of the grand jury’s inquiry.

2. A violation of the admonition may constitute contempt of court.

3. The following admonition would be legally sufficient: “You are admonished not to reveal to any person, except as directed by the court, which questions were asked or what responses were given or any other matters concerning the nature or subject of the grand jury’s investigation which you learned during your appearance before the grand jury, unless and until such time as a transcript (if any), or a final report, of this grand jury proceeding is made public or until authorized by this grand jury or the court to disclose such matters. A violation of this admonition is punishable as contempt of court.”

Official Citation: 86 Ops.Cal.Atty.Gen. 101 		06/06/2003
02-1103 1. Does the Orange County Charter lack the necessary elements of a county charter enumerated in the California Constitution, article XI, section 4, thus rendering the charter invalid?

2. Did the ballot materials in connection with Measure V on the March 5, 2002 general election ballot establishing the Orange County Charter mislead the voters by failing to inform them that the charter would change the structure of the Orange County government, thus rendering the charter invalid?

3. Did the ballot materials in connection with Measure V on the March 5, 2002 general election ballot establishing the Orange County Charter mislead the voters by failing to address the fiscal impact of the charter, thus rendering the charter invalid? 		1. Whether the Orange County Charter lacks the necessary elements of a county charter enumerated in the California Constitution, article XI, section 4, thus rendering the charter invalid, does present substantial issues of law and fact which warrant judicial resolution, and for which leave to sue is granted.

2. Whether the ballot materials in connection with Measure V of the March 5, 2002 general election, establishing the Orange County Charter, misled the voters by failing to inform them that the charter would change the structure of the Orange County government, thus rendering the charter invalid, does present substantial issues of law and fact which warrant judicial resolution, and for which leave to sue is granted.

3. Whether the ballot materials in connection with Measure V of the March 5, 2002 general election, establishing the Orange County Charter, misled the voters by failing to address the fiscal impact of the charter, thus rendering the charter invalid, does present substantial issues of law and fact which warrant judicial resolution, and for which leave to sue is granted.

Official Citation: 86 Ops.Cal.Atty.Gen. 1 		01/13/2003
02-1101 May the California Public Employees' Retirement System allow its fiduciaries to purchase "waivers of recourse" coverage from its self-insurance program? The California Public Employees' Retirement System may allow its fiduciaries to purchase "waivers of recourse" coverage from its self-insurance program.

Official Citation: 86 Ops.Cal.Atty.Gen. 95 		06/05/2003
02-1012 May a public entity accept a bid for the construction of a public works project that does not specify the business location of each listed subcontractor but does provide the state contractor's license number of each listed subcontractor from which the business location may be ascertained upon further inquiry? A public entity may accept a bid for the construction of a public works project that does not specify the business location of each listed subcontractor but does provide the state contractor's license number of each listed subcontractor from which the business location may be ascertained upon further inquiry.

Official Citation: 86 Ops.Cal.Atty.Gen. 90 		06/03/2003
02-1006 1. What legislative control exists relating to competitive bidding for the procurement of goods and services by the University of California?

2. Is the University of California required to comply with any statutes in the Public Contract Code, Government Code or Labor Code with respect to the procurement of goods and services? 		1. Public Contract Code sections 10507.7 and 10509 control competitive bidding for the procurement of goods and services by the University of California.

2. The University of California is required to comply only with the provisions of Public Contract Code sections 10507.7 and 10509 with respect to the procurement of goods or services.

Official Citation: 86 Ops.Cal.Atty.Gen. 63 		04/28/2003
02-1005 1. May a county board of education appoint outside counsel in addition to in-house counsel to provide unrestricted, independent advice to the board?

2. May a county board of education contract with outside counsel to provide advice to the board when (1) in-house counsel has a conflict of interest, (2) in-house counsel has failed to render timely advice in a particular matter, (3) the services being sought are in addition to those usually, ordinarily and regularly obtained from in-house counsel or (4) the board desires a second legal opinion from that provided by in-house counsel in a particular matter? 		1. A county board of education may not appoint an outside counsel in addition to in-house counsel to provide unrestricted, independent advice to the board.

2. Depending upon the facts in a particular matter and subject to statutory conditions, a county board of education may contract with outside counsel to provide advice to the board when (1) in-house counsel has a conflict of interest, (2) in-house counsel has failed to render timely advice in a particular matter, (3) the services being sought are in addition to those usually, ordinarily and regularly obtained from in-house counsel or (4) the board desires a second legal opinion from that provided by in-house counsel in a particular matter.

Official Citation: 86 Ops.Cal.Atty.Gen. 57 		04/25/2003
02-913 Does a county board of supervisors have the discretion, in each fiscal year, to change the allocation of Proposition 172 funds among otherwise eligible public safety service agencies, including an allocation to an otherwise eligible public safety service agency that did not receive an allocation in a prior fiscal year? A county board of supervisors has the discretion, in each fiscal year, to change the allocation of Proposition 172 funds among otherwise eligible public safety service agencies, including an allocation to an otherwise eligible public safety service agency that did not receive an allocation in a prior fiscal year.

Official Citation: 86 Ops.Cal.Atty.Gen. 38 		04/01/2003
02-908 May a security officer employed by a community college district exercise the powers of a peace officer on behalf of the district? A security officer employed by a community college district may not exercise the powers of a peace officer on behalf of the district.

Official Citation: 86 Ops.Cal.Atty.Gen. 112 		06/20/2003
02-904 May a muzzleloading rifle equipped with iron sights contain a fiber optic ambient light gathering system when used to hunt big game? A muzzleloading rifle equipped with iron sights may not contain a fiber optic ambient light gathering system when used to hunt big game.

Official Citation: 86 Ops.Cal.Atty.Gen. 35 		03/28/2003
02-808 May a county board of supervisors contract with a nonprofit mutual benefit corporation to promote tourism and commerce if a court has ruled that the corporation would not be performing a "function" of the county and would not be operating "on behalf of" the county as those terms are used in the statutes governing the investigative authority of a grand jury? A county board of supervisors may contract with a nonprofit mutual benefit corporation to promote tourism and commerce even though a court has ruled that the corporation would not be performing a “function” of the county and would not be operating “on behalf of” the county as those terms are used in the statutes governing the investigative authority of a grand jury.

Official Citation: 86 Ops.Cal.Atty.Gen. 17 		02/20/2003
02-805 Does the board of retirement of the San Diego Transit Corporation have responsibility to administer the pension system established for the employees of the San Diego Transit Corporation? The board of retirement of the San Diego Transit Corporation does not have responsibility to administer the pension system established for the employees of the San Diego Transit Corporation.

Official Citation: 86 Ops.Cal.Atty.Gen. 86 		06/02/2003
02-613 Does the payment by a state agency of an employee's annual dues for a professional license, which license is required for the employee to perform his or her agency duties, prevent the employee from rendering professional services to others for compensation? The payment by a state agency of an employee’s annual dues for a professional license, which license is required for the employee to perform his or her agency duties, does not prevent the employee from rendering professional services to others for compensation.

Official Citation: 86 Ops.Cal.Atty.Gen. 54 		04/11/2003
02-608 May the board of retirement of a county employees retirement association appoint an alternate for the eighth office on the board, which office is held by a retired member elected by the retired members of the association, without the approval of the jurisdiction's electorate? The board of retirement of a county employees retirement association may appoint an alternate for the eighth office on the board, which office is held by a retired member elected by the retired members of the association, without the approval of the jurisdiction’s electorate.

Official Citation: 86 Ops.Cal.Atty.Gen. 25 		03/18/2003
02-309 May the Division of Conciliation of the Department of Industrial Relations conduct an agency shop election during the term of an existing memorandum of understanding between a public agency and a recognized employee organization that contains a "modified" agency shop provision? The Division of Conciliation of the Department of Industrial Relations may conduct an agency shop election during the term of an existing memorandum of understanding between a public agency and a recognized employee organization that contains a "modified" agency shop provision if the current agency shop provision is first rescinded by the employees or first removed from the agreement by negotiation.

Official Citation: 86 Ops.Cal.Atty.Gen.169 		09/24/2003
02-213 1. Are the Military and Veterans Code provisions granting employment related benefits during the temporary military leaves of absence applicable to persons who seek leaves of absence for service in the militia of another state?

2. Under the Military and Veterans Code provisions relating to temporary leaves of absence for military duty, do 172 working hours constitute "30 calendar days"? 		1. The Military and Veterans Code provisions granting employment related benefits during temporary military leaves of absence are not applicable to persons who seek leaves of absence for service in the militia of another state.

2. Under the Military and Veterans Code provisions relating to temporary leaves of absence for military duty, "30 calendar days" consists of the number of working hours the employee would ordinarily work during the 30 calendar days. For a person who works 40 hours each week, 30 calendar days consists of 21.5 working days or 172 working hours.

Official Citation: 86 Ops.Cal.Atty.Gen. 12 		01/24/2003
02-111 Do the activities of eBay, Inc. in connection with the purchase and sale of previously owned yachts require it to be licensed as a yacht broker under the provisions of the Yacht and Ship Brokers Act? The activities of eBay, Inc. in connection with the purchase and sale of previously owned yachts do not require it to be licensed as a yacht broker under the provisionsof the Yacht and Ship Brokers Act.

Official Citation: 86 Ops.Cal.Atty.Gen. 48 		04/10/2003
01-615 1. Where (1) a public agency used its power of eminent domain in 1965 to acquire most of a 640-acre parcel of land for the creation of a reservoir, which left two remaining parcels of land physically separated by 700 feet of water and (2) the county's subdivision ordinance in effect at the time did not regulate divisions of land creating four or fewer parcels, were the remaining two parcels of land legally created as separate parcels for purposes of the Subdivision Map Act?

2. Was the legal status of the two remaining separate parcels affected when an owner of the parcels subsequently obtained a timberland production zone classification for both parcels, which zoning required that the parcels be managed as contiguous parcels? 		1. Where (1) a public agency used its power of eminent domain in 1965 to acquire most of a 640-acre parcel of land for the creation of a reservoir, which left two remaining parcels of land physically separated by 700 feet of water and (2) the county's subdivision ordinance in effect at the time did not regulate divisions of land creating four or fewer parcels, the remaining two parcels of land were legally created as separate parcels for purposes of the Subdivision Map Act.

2. The legal status of the two remaining separate parcels was not affected when an owner of the parcels subsequently obtained a timberland production zone classification for both parcels, which zoning required that the parcels be managed as contiguous parcels.

Official Citation: 86 Ops.Cal.Atty.Gen. 70 		05/15/2003
01-402 May a city prohibit, limit or regulate the operation of a boarding house or rooming house business in a single family home located in a low density residential (R-1) zone, where boarding house or rooming house is defined as a residence or dwelling, other than a hotel, wherein three or more rooms, with or without individual or group cooking facilities, are rented to individuals under separate rental agreements or leases, either written or oral, whether or not an owner, agent, or rental manager is in residence? A city may prohibit, limit or regulate the operation of a boarding house or rooming house business in a single family home located in a low density residential (R-1) zone, where boarding house or rooming house is defined as a residence or dwelling, other than a hotel, wherein three or more rooms, with or without individual or group cooking facilities, are rented to individuals under separate rental agreements or leases, either written or oral, whether or not an owner, agent or rental manager is in residence, in order to preserve the residential character of the neighborhood.

Official Citation: 86 Ops.Cal.Atty.Gen. 30 		03/19/2003